IMPORTANT POINT
If a formal defect can be rectified by way of amendment, there is no necessity to seek withdrawal of suit.

ORDER

Challenge in this Civil Revision Petition is to the order dated 23.12.2020 made in I.A.No.752 of 2020 in O.S.No.4 of 2020 on the file of the Court of the II Additional District Judge Nalgonda at Suryapet, wherein and whereby the trial Court dismissed the petition filed by the petitioner/plaintiff under Order XXIII Rules (1), (3) r/w Section 151 CPC to grant leave to the petitioner to withdraw the suit with liberty to institute fresh and comprehensive suit in respect of all properties liable for partition and other reliefs and against all the parties interested in the property for proper and effectual adjudication of the matter.

2. For the sake of convenience, parties to this revision petition will, hereinafter, be referred to as they were arrayed before the trial Court.

3. The facts of the case, in nutshell, are that the petitioner filed the suit against her brothers and sister in law for partition of suit schedule property. After filing of the present suit i.e. O.S.No.4 of 2020, she came to know that there are some other properties liable for partition and hence filed the I.A.No.752 of 2020 seeking to withdraw the present suit with permission to file a fresh suit. The respondents opposed the said application. The trial Court, after hearing both sides, dismissed the petition. Hence the present Civil Revision Petition.

4. The learned counsel for the petitioner submitted that the trial Court failed to take into consideration the settled legal position that in a suit for partition of joint property, all the parties having interest in the property shall be joined as parties and that all the properties available for partition shall be shown ion the suit. He further submitted that the trial Court misread the provision of law and hence prayed to allow the Civil Revision Petition. He relied on the judgment of the Hon’ble Apex Court in V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63.

5. On the other hand, the learned counsel for the first respondent Sri A. Prabhakar Rao and the learned counsel for the respondent Nos.2 and 3 Sri B.Nalin Kumar, in one voice, submitted that the Civil Revision Petition is liable to be dismissed since the defects pointed out by the petitioner are curable defects before the trial Court by way of carrying out amendment to the plaint in respect of the plaint schedule properties and by bringing the necessary parties as defendants. They further submitted that in the plaint the plaintiff stated that there are no other parties except the petitioner and the other sisters are settled and they have no interest in the property and with regard to the schedule of property she stated that there are some left over properties which she came to know after filing of the suit, and thus she feels to bring the same on record, which cannot be accepted at this juncture for the purpose of withdrawing the suit and for filing of a comprehensive suit. The defects she raised are curable and prayed to dismiss the Civil Revision Petition. They relied on the following judgments: K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, Joginder Singh v. Surinder Pal, 2020 SCC OnLine HP 1793, and Bakhtawar Singh v. Sada Kaur, (1996) 11 SCC 167.

6. Order 23, Rule (1) (3) CPC Reads as under:

Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

Provided that—

(1) XXX

(2) XXX

(3) Where the Court is satisfied,—(a) that a suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

7. Here, formal defect means a defect of form, which is